Took a Photo at a Public Event and Am Now Getting a Letter from a Lawyer

[printergirl]

I am a hobbyist photographer, looking to break into portrait photography. I created a website which I post my work on via an online commercial photo site. They allow me to upload pictures and resell photographs to potential clients, after their photo session. This is a default that is available to all of my galleries when I upload my work. They handle all of the sales, collection of money, etc. and print and ship the items, paying me a commission on each sale. I have had the website a little over a year and have yet to make even ONE sale from it, as I am not doing professional portraits yet (just fun for family and friends, and some work for trade with local wanna be models -- no cash exchanged). I don't use it just for sales, as I post personal family pics and pictures I have taken of places I have visited to it as well, for friends and family to view. Anyway, that being said, here is my situation:

I went to an Art Festival in early 2009 with my kids. It was a nice way to spend the day, and I took my camera along to document the event. Well, during the course of the day we saw many great pieces of artwork and sculptures, as well as interesting people. I photographed a lot of things at the event and we talked to several of the artists, who didn't seem to mind me, and tons of other people, taking pictures of their work. The only ones who seemed to care where other photographers, who clearly posted signs about not taking pictures of their work. I can understand that, because I can see how a picture of a picture could be duplicated in an underhanded way. None of the people with three dimensional artwork, or even any of the painters there, seemed to have problems with people taking pictures. The artist in question even spoke with me and saw me take pictures of her work. She never said I couldn't or seemed upset about it in any way.

After the event, I uploaded them in the events section of my website, so I could share the pics with family and friends. Event photography is not really my genre of work, as I am trying to break into portrait photography, which is why I have that website in the first place, but since I had the online storage space and a section for events, it went ahead and posted my pictures of the even to it. Personally, I didn't feel the photos were that great, but they were good enough to share with friends.

Under the photos I gave credit to the artists that I took pictures of their work and a link to their website. They all had given me business cards. I figured at the least it would help draw business to their websites for purchase, if someone saw the pics. Free advertising in a way, not that my site is a big draw for eyes at this point, but what the heck right.

Well, one lady who does some very interesting sculptures, who we talked to at the event, she saw me take pictures and she gave me a business card, has hired a law firm and they sent me a letter today (certified) saying that I am infringing her copyright and I owe damages for any sales made on these pictures, as well as $1000 in legal fees! WTH! And, of course, that I needed to take them down (which I did in about 60 seconds flat).

Um, the pictures were not even "quality" work, or something I would consider selling, but they were uploaded into a gallery that had the "buy" button turned on, which is set by default, along with my standard copyright blurb in the description section, which is also a default. I just recently found out I can turn that "buy" button off, so no one can purchase photos in an particular gallery. They are accusing me of "selling" her work. Heck, I have never sold even ONE item off my website in the year I have had it! Not of her work, or even my own!

I never in a million years thought that posting a photo taken in a public venue, and even giving the artist credit and a link back, would cause such a stir. I imagine if I had just posted then without credit to her, the name of the pieces, or her website link, no one would have ever found them and this would all be mute, as they would never even know they were out there online, but I was trying to help HER boost her sales and eyes on her work, as I thought it was some pretty interesting stuff.

I am beside myself, as they are saying I need to pay them $1000 (the law firm) and release all sales records regarding these photographs, and remit any money made off them. THERE ARE NO SALES RECORDS! I never sold any prints -- I have NEVER sold any prints from my website in the year I have had it! I have spent the last two hours in a state of disbelief (a good portion of it crying) over this, as I don't know what to do.

I, of course, IMMEDIATELY took down all of the photographs I had done of this particular artists sculptures, along with any photos done of other artists work, so I don't run into problems with anyone else, as they requested.

Their second request is to release all negatives to them. Of course there are none. This was digital.

They want all digital references deleted. I took them off my website.

They want sales records. Well, there have never been any sales off my account, AT ALL, so how can I provide such records?

They want all prints destroyed. I never made any prints so nothing to destroy.

And, lastly they want a certified check for $1000 made payable to the law firm! What the heck. I don't have $1000, and have yet to actually make a dime in photography, and had someone picked up a phone and called me saying I needed to take them down, I would have done so in about 60 seconds flat. The first communication I got was in the form of this certified letter. And my phone number is right there on my website. I had no idea that I was doing anything wrong. I thought under "Fair Use" law, I could take a photograph in a public place at a public event and share it with others. I guess because the "buy" button was turned on, they think I am selling her work.

Because of this, I doubt I will ever take my camera to an art show again, which is a shame because I love art shows. I doubt I will even go to one any time soon I am so upset about this.

They have asked me to provide proof of compliance in deleting the photos (done, they are off my website and thank goodness I had never uploaded that event to Flickr. I think I did put them on my Facebook page, so I will delete them there as well), they want sales records (well there are none of course), and $1000 check for legal fees. WTH! For sending one certified letter to an address they didn't even have to look up, it is right there on my website. As is my phone number, so not sure why they didn't just call. I would have complied with their request right then, had they.

I feel like this is a shakedown. I am just a poor working mom, paying the bills while my husband is in college, on just my salary alone. I am a hobbyist photographer (though I do think I have a nice website, as I am hoping to one day parlay it into a career when my husband is out of school and we don't rely on my income) and have never made a dime off my photography. I am at my wit's end on what to do. I have drafted a letter to send them, as they are requiring me to do, as I really don't have money to pay a lawyer. Is there anything more I should say or do?

Here is my letter:

I received notification regarding some photographs I took while visiting the 2009 XXXXX Art Festival with my children. I had taken some photos of the event and posted them on my website, under the events section, to show family and friends our day at the event. I had no idea I was doing anything wrong in doing this.

While visiting the show, we spoke with (sculptor's name), and she even gave us a business card, because we found her work so interesting. She watched as I, and many others, took pictures of her work. I had no idea posting them online was an issue, especially since I linked to her website underneath each photo, encouraging people to visit her site, and hopefully purchase one of her unique sculptures. I received your letter and immediately took the photos down, along with any other shots I took of other artists works that were also in that section, since
apparently this not allowed. I have only left event shots of public areas of the park itself.

The images have all been removed and there are no negatives, as these were digital files. No prints were ever made of any photos, not for me personally, or for anyone else, taken at the XXXXX Art Festival, at all.

I am just writing to let you know I have complied with pulling everything by her off my website, within 10 minutes of getting your letter requesting that I do so. Had someone called and told me I wasn’t allowed to post pictures taken at the event, I would have taken them down immediately. I had no idea that taking pictures in a public place I was visiting with my children, for a cheap way to have a day of fun
family time together, would cause such a problem. I would have thought that any pictures taken in a public place and event such as this would fall under "fair use" and would never be considered a copyright infringement. There was nothing posted saying we couldn't take pictures.

I put up a photography website for myself, as I am a mom, trying to break into portrait photography, because I like taking pictures of my kids. I have used the site to post pictures I have taken of friends and family, as well as places I visit, and events I attend, to share with others. I am hoping to one day turn it into a career, however I am far from a “professional” photographer, at this point. I have yet to make one single dime on any of my photographs, not even the portraits I have taken of people, which have all been done for fun up to this point for family and friends. I have never sold ANY photography from my website at all, so there are no “proceeds” to speak of with regards to XXXXX’s work, or even any of my own portrait photography thus far, for that matter.

[KeyWestDan]

You need to flesh this out (and this is not legal advice, you are not paying me) but basicly tell them what you told us.

Also point out that the artist did not have any sign prohibiting photography. I would say, what did she think was going to happen to digital pictures. They are posted online. That is to be expected. The artist herself is thus negligent in controlling her intellectual property.

The artwork was displayed in a public place, not inside a controlled gallery. I doubt any artist displaying at that festival has to worry about their work being copied as if they are Bansky or somebody of note.

There were no sales. You removed the images and deleted the files.

The artist suffered no damages. Ask if the artwork is filed with the US Copyright office? I would bet it is not, so they can't get statutory damages. They can only get actual damages, of which there are none.

Most artists would appreciate the exposure. I would tell them that this is obviously a shakedown from someone who really needs to get their ego under control.

Do not pay them a cent and tell them you will not pay them a cent.

Tell them to go back to their usual ambulance chasing. (Just kidding.)

[Mr. Knowitall]

My guess is that the artist looked in the referral logs from her site, found your page, checked it out, saw that you had pictures of her work for sale, and called her lawyer. I am skeptical that this would be an issue had you simply had the pictures posted with no indication that copies were for sale. As it stands, instead of having it look like you were sharing snapshots from the art fair, you made it look like you were profiting from her work.

I do not know how hard the artist is prepared to push the issue, or whether your explanation will be acceptable to the law firm. You can try to explain the situation and see what happens, you can ignore the situation and see what they do, you can hire a lawyer to advise you... the "solutions" are imperfect.

I personally would not send a check with my explanation. I think the odds are that with a reasonable, factual explanation and (I assume) no registration of the trademark, most artists would find it too expensive to proceed with litigation. But I would be playing the odds - some people are very litigious.