My friend is asking for some advice on an issue, I thought that the people here would have a better idea of how to deal with it
He was informed by a model that his pictures which were shot for a magazine were published in another magazine without consent.
The images were credited to the original magazine which the images were shot for.

No contract was signed for this editorial between the photographer and magazine on the understanding that this shoot was pro-bono and no rights were transferred to the magazine.

Now the modelling agency involved is billing the photographer for the additional publication of the editorial.

In such a situation, what would be the recommended course of action? My friend is thinking of billing the magazine, but in the situation where the magazine refuses to pay, what course of action can he resort to?

First he has to find out who gave the pictures to the other magazine that published it and who told them they could publish. Both magazines should know that publishing without a contract or consent is not allowed. Personally I would forward the bill of the modelling agency to the first magazine, for breaking the agreement and I would send a bill of my own to the second magazine for publishing my work without my permission. If the first magazine would admit that they told the second magazine it was OK to publish I would send my own bill to them too and leave the second one out of it financially. From them I would only demand proper credit in a rectification.

Then if both refuse to pay: take them to court for their respective bills.

hrm how costly is it to take it legal? seems like it would cost alot and not get much...except satisfaction haha

will pass the info along thanks!
any one else experienced something like this?

This is one of the reason why I am a member of a Photography association. They help with these kinds of cases.

I would first contact the magazine that has used the material without approval. They are the ones that are wrong and should have known this. It might very well be that there was an unexperienced editor that did not have a clue. So keep it friendly at first, your friend might end up with an extra client in the future. If this can be achieved it is the most desired situation.

If they refuse to pay for the usage your friend can always go for the hassle of legal action. I am glad I never had to revert to that. I have had about a dozen court cases over the last ten years (over various other matters). No matter I lost or won it always costed me money. My ego is small enough by now to walk away if I smell something will cost me more than I gain.

That is my personal opinion. I know there are people that want to take these types to court no matter what as a matter of principle. Fine, they have a point but I have had my share of court cases. For me the court is like a gambling machine, sometimes you win sometimes you loose but the house always wins. It will always cost you money.

Legal cases can cost significantly. Depending on the type of case and the party you are up against. If you are fighting a large corporation that has almost unlimited funds, their own legal department and their own dedicated law firm you are better of trying to negotiate your way out of it. It has cost me almost everything I once owned and about 10 years of my life.

Again this is all just my opinion and part of my own experience.

dustbank is correct in his opinion. only option is to send bill to first magazine and demand the claim. or send a legal notice for your right.

Dear Dustbak,,,, sorry for wrong spell in addressing you...

Since when do model agencies bill for editorials?? I've never had to pay modeling fees for non-commercial work and usually the agency would just be happy for the additional exposure.

Yeah sounds like you got a bad contract with the agency there. Time to switch?

If this had happened to me i wouldn't bother with magazine #1 but rather send a happy "How nice of you to like my picture so much as to publish it. Here is the bill for the publishing rights for that issue. Thank you for the buissness and i look forward to working with you again."

If they then yell about not paying THEN i'd take them to court.

Sometimes letting them get off the hook might lead to a new client in the future.

1. as the photographer you have to live by the contract you have with the modeling agency.. so go over what you agreed to with them.

2. invoice the 2nd magazine who used this without permission..and of course ad the modeling fees
I would just throw in a number for usage..give them something to think about. and send it to the
editor
3. like above find out who gave what.. and be prepared to bill these guys for the modeling but that should be back plan as the folks who used the photo are the culprits.. if first magazine wants to fall on the spear.. great but both need to know that they infringed on your rights and the model's right.
4 . be mentally prepared to eat it.. if you did not have a contract with no. one editoral.. and decide if you want to go through with the small claims courts route..
5. join asmp or apa to get the correct estimate forms that call out usage and help photographers maintain their rights...
6 call your congressman/woman as the orphan works bill has been raced through and passed by the senate and our rights as we knew them is on the line as creators. congress is set to vote soon..kill this bill!

if you are smart: send a bill for 4x the going rate.
if you are dumb (like me): just grumble on message boards.

haha good idea. Will pass the information along.
Thanks for all the good feedback. It's always useful to hear others' experience

Actually the 2nd magazine credited the 1st magazine for the images in the article.The images are in high rez, and only the 1st magazine received high rez copies of the file.
It seems quite obvious who the 2nd magazine got the images from.

Regarding point 4, why do you say that not having a contract with them puts the photographer in a bad position? All the more the magazine has no rights to the images correct? Just curious.

when dealing with these matters I have found it such a relief when I go back to my file on the job and find that yes in the estimate I made with the client all the legal stuff is spelled out.. so they accepted my terms.. you want as much going for you as possible to avoid dispute after the fact.
now with editorial it is usually the magazine which issues its legal paperwork on you.. takeit or leaveit... and in their it should be spelled out the usage as they see it.. these are in their favor but shooting editorial is not just about money is it?
...."they credited the other mag"
which means they should also print a correction with your credit on it.

Ring both magazines and ask for a meeting. This way you get to explain your predicament (and theirs!) but also it's a much better way of representing yourself than just in the form of an unsolicited invoice... As Dustbak says .. they could be a client in the future.

Ros

I let a friend's band's label use 4 pictures solely on a free promo CD (just credit). I had email trails about it.


The pictures were sitting around on the graphic designer's desk.... then I open up every music magazine and there are 1-2 page spreads for the new CD in every music magazine for 2-3 months and then another 2-3 months at 1/2 page. I raised a stink and they offered a $4K credit to their web-store cause it was a mistake.
I never emailed back and never sent them anything again.
one of my friends sued and won, but I didn't want to bother. should have.

I could only find the 1/2 and 1 pager. not the 2 pager.

yes I think that it's a good idea to be more hands-on and personal about it rather than just sending in an invoice which might leave people scratching heads...

$4k in web store credit!you could buy their single album 200 times over.