Saturday, 3 April 2010

Taking on the "Mafia"


As every creative individual out there knows, be they painter, sculptor, writer, photographer and so on, one of the unfortunate challenges that we face is where less than scrupulous individuals or companies seek to use our works without permission or due payment.. especially in instances where such use of our works generate some form of revenue for them

Some months ago I read (via Twitter) that MMA fighter Nate Quarry was engaged in a back-and-forth tussle with apparel company The Fight Mafia; the core of the exchange was that Nate was owed nearly $8000 in sponsorship revenue for wearing one of their shirt designs at his fight against Tim Credeur.

In reading this exchange, never did I once think that I'd find myself up against Noel Brooks' company, trying to get payment from them for their use of a photograph I took after UFC 105.

What I'm trying to sort out is this:



Yep, that's one of my photographs of Dan Hardy that they used to advertise the branded bandanas that they were selling.


It was ripped off my from my Facebook page as here. Upon finding out that they'd used and modified my photograph - without consent or appropriately licensing it from me - I went straight to emailing them. Here's what I said

March 14, 22:49 GMT
"It has came to my attention that the website danhardybandana.com, which is cited as 'owned and operated by Dan Hardy MMA Brand & The Fight Mafia', is using a photograph that I took of Dan Hardy after UFC 105 without my prior knowledge or consent - an unmodified example of which is attached to this email.

I am the sole copyright owner of this photograph and would like to know how you intend to resolve the breach of my copyright"
A few days later, I got this response




March 17, 01:20 GMT
"Hello, we were unaware that the photo had been copyrighted.  The photo was taken from Dan's facebook page were it was cited as a tagged photo of Dan.  There were no copyright symbols or information on the photo.  We can do two things.  (1)  Take down the image.  (2)  Ask for your consent to use the photo and credit you as the one responsible for the photograph.  We just loved how it turned out.  Let us know how to proceed"
Wow! They're offering a photo credit byline - lucky me! Oh, wait - I suddenly remembered the five years and many thousands of pounds that I'd invested in my photography equipment... that, and the fact my local supermarket has stopped accepting photo credits as payment for groceries. 


I guess I have to feed my kids thin air and clothe them in a mix of nitrogen, oxygen and other atmospheric gasses... 


Wait, that doesn't work. Oh well, best send a message back to them.

March 17, 09:07 GMT
"Thanks for your response. Your offer of simple removal of the photograph or merely "crediting" it's use is unacceptable as you already appropriated it for commercial use.
Specifically, your claim that "There were no copyright symbols or information on the photo" is blatantly false. Whilst it is true that the photograph exists on Facebook and, being metatagged with the name "Dan Hardy" makes it visible on his profile page, the attached screen capture (file owner_info.jpg) shows how the image would be displayed when viewed using a Facebook account other than my own.
For your benefit I have highlighted the portion of the image that shows information on who owns the photo; clicking on my name would have enabled you to send me a message via the Facebook network where you could have communicated to me your request to use license the photograph for use on danhardybandana.com
Furthermore, specifically on the lack of a copyright symbol, I would like to draw your attention to the following webpage www.copyrightservice.co.uk/copyright/copyright_myths - in particular, sections four, five, six and eight.
In closing, the options that are open to you are twofold
1. Pay an appropriate license fee for the commercial use of my photograph, or
2. Pay an unauthorised usage fee and remove the photograph from danhardybandana.com
As a UK based photographer, non-client usage rates are based on the NUJ's Freelance Fees Guide; the license fee would fall under the section "Commercial and Business" and, as the photograph has been used at 981x786 pixels, the fees for 800x600 pixel (attached file usage_size.jpg) would apply as follows, with $US values taken from current rates as provided by XE.com
  • 1 months use: £225  ($342.63)
  • 3 months use: £450  ($685.26)
  • 6 months use: £675  ($1027.88)
  • 12 months use: £850 ($1294.37)
Please advise how you would prefer to proceed; once you have done so, I can prepare an electronic invoice and payment can be made via direct bank wire transfer"
Hrm, seems that Noel has been caught with his hand in the cookie jar. Being ignorant of copyright law is not a valid defense, and I'd also busted their claim of not knowing it was me who took the shot. 


At this point I'm thinking that common sense will prevail; unfortunately, common sense isn't as common as I thought...

March 18, 00:16 GMT
"Our apologies.  We have no knowledge or I guess are oblivious on the proper steps in regards to use of copyrighted materials.  We have no interest in purchasing the rights to this photo or any other photo for that matter.  The site was launched fairly recently and we just liked the photo.  We will take it down immediately!  After talking with Dan, we will have to figure out how to proceed compensating you for past use if nessassary in regards to copyright laws.  We of course at that time must see proper documentation that you are the actual propietary owner of that photo.  If you don't mind we can have further correspondance after Dan's fight as distracting him with this matter at this time is not appropriate.  I assume you are a MMA fan and hopefully understand.  Dan also might have a fee if images of him are being sold for licensing purposes.  Thanks."
Wow, there's an eye opener: The Fight Mafia - who produce clothing designs that would be covered by copyright - are "oblivious on the proper steps in regards to use of copyrighted materials" 

Ssssh! Don't let all those other MMA clothing companies know this. They might start using your designs and just give you byline credits for doing so. Or maybe they'd just stop doing it if you asked them nicely. No way would you ever expect to be paid because, hey, you're an MMA fan and created those designs because you just love the sport....

Their wording also made it clear that they're not in the habit of paying for photography. Just like they weren't in the habit of compensating Nate Quarry for wearing one of their shirts.... of course I know that'll all cleared up now but still.

The icing on the cake in this exchange is the following nugget.
"Dan also might have a fee if images of him are being sold for licensing purposes"
The mental gymnastics displayed here are astounding - truly world class. Allow me to put it into clear terms that show how ridiculous this concept is.
  1. The Coca-Cola Company hires David Beckham to promote their drinks
  2. The Coca-Cola Company hires Annie Leibovitz to photograph David Beckham for their ad campaign
  3. The Coca-Cola Company pays David Beckahm a fee for appearing in said adverts
  4. The Coca-Cola Company also pays Leibovitz a fee for her to shoot the campaign photos
  5. More people buy Coca-Cola products based on the campaign = Coke makes $$$$
Using "Fight Mafia" logic, David Beckham would be due a cut of Anne Leibovitz's fee - because she took the photographs of him for the Coca-Cola company.


Wait.... what??

The analogy for what has went on here is fairly accurate...- except Fight Mafia never hired me to shoot Dan Hardy; instead, they used one of my photographs without permission or payment to advertise a product that they sell - one which Dan no doubt gets a cut of the profits.

Can you imagine what would happen if Coke ripped off a Leibovitz shot of David Beckham and used it in an ad campaign??

Luckily for me I have the original RAW file of this photograph which handily has the date, time and serial number of my camera embedded into it - thus proving beyond all doubt that it's my photograph. Not to mention that there were a ton of UFC fighters, staff, friends and other people all milling around the lobby of the Hilton Hotel at the time who would also be able to verify I took that shot.

The neat little email exchange also proves that the Fight Mafia knowingly used this photograph without my consent and, upon my request to be compensated for doing so, they've employed stalling tactics and are seemingly unwilling to pay - despite them clearly breaching my copyrights.

Photography is the only thing I do. It's my sole source of income. I've been doing it for five years now, earning what I can and largely re-investing those earnings in gear - very expensive gear - so that I can stay at the cutting edge of my profession and deliver the results that editors, readers and fans of my photography are accustomed to.

Fight Mafia could have done the decent thing and either licensed the image from me or, better yet, employed me to take some shots of Dan wearing their new bandana design that they could have used for their website. I'd have turned in some top-notch shots and everyone would have been happy.

So what next? I'd given Fight Mafia until 31st March to respond and as of today (April 3rd) there's been no reply. It took Nate Quarry several months to get the nearly $8000 dollars he was owed from Fight Mafia; I'm asking for far less than that but I'm not going to hold my breath. Still, like Nate, I'm not going to let this go without a fight.

Who's in my corner on this one?

16 comments:

  1. Interesting story you are right on every count as a photographer to a photographer don't let them get away with it, it's theft plain and simple.
    Wishing you luck and a speedy resolution.

    Glyn Jones

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  2. Keep up the good fight, I wish you the best of good luck in this case

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  4. So TFM dont't know about copyright? odd for a merchandise company, but given the whole line is taken from existing film imagery maybe they are just naive or just cheap in not commissioning their own photography and designs.

    Is this the same company that ripped out Tokyo 5's press release from UFC105 for Ross Pearson & Andre Winner and then re-released it as their own?

    Or maybe this is the same company that has been producing and selling the 'Official UFC 111 Dan 'The Outlaw' Hardy banner and yet failed to have Dan show up in it at the show. There will surely be some disgruntled fans out there?

    But seeing as they are not an official UFC apparel sponsor this probably explains it, though someone should let 'The Outlaw' know his fans are being duped for profit, though he has been silent about this so far.

    TFM's only response to this so far has been to blame the 'UFC paperwork BS' for the non appearnace of TFM at UFC111. Perhaps TFM means the green and crispy type of paper?

    Even stranger, searching the Ontario business records, there appears to be no such company registered there by this or similar names, which gives serious doubt as to TFM's previous statement about being 'red flagged' by the Canadian Govt for their accounts situation which contributed to their probelem in not being able to pay Nate Quarry his overdue check from Sept.

    The only search to suggest this business is even real did reveal a recent small claims court judgement against a Mr Noel Brooks of Chatham Ontario for $25,000 in favour of a british company - Warrior Promotions, who are an MMA business and manage fighters - coincidence?

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  5. firstly, You're not actually the sole copyright owner, but you do actually own the copyright. As the image was on facebook, then they own full non exclusive copyright of the image, as in there TOS.

    secondly, @TFM, if you sold even one of those bandannas, then you gained commercially from using that photograph and you owe Mat full compensation as he is the ORIGINAL copyright holder.

    Also, if Dan does have a fee for people using photos of him for commercial gain, thats all well and good, but the only people who could possibly owe him any money from this is TFM as they have the commercial gain from selling bandannas. Mat wasn't trying to gain commercially, and TFM used the image for commercial gain and therefore owe compensation, not payment for the rights to the photograph.

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  7. Noel,

    You sound a little like War Machine, guy gets arrested 4 times for assualts, but yet they are all cases where he did nothing wrong and was unjustly accused. Are we to believe that all claims against you are frivolous? Or maybe, just maybe, your a greedy asshole who doesn't like to pay his bills? Hmmm...

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  8. Does this guy really think that The Fight Mafia name carries some sort of weight in the MMA apparel industry? The only place i've ever noticed the logo or even the name is when someone's dragging it through the dirt because they felt they were wronged in some way.

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  9. The other thing i noticed about their banner is that they're also using the UFC logo, if the UFC were to find out about that they would likely be hearing from their lawyers as well.

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  10. Alex,

    Facebook's terms of service regarding photographs and other Intellectual Property are, as of April 4, 2010:

    "For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it"

    Simply put; by putting one of my photographs on my Facebook user page, I am granting Facebook the right to have that photograph published across their platform i.e. in friend feeds, photo galleries etc.

    What it doesn't do (and their language, though complex, makes this clear) is grant any copyright - in whole or in part - to Facebook.

    The key word in their terms of service is as follows

    "non-exclusive, transferable, sub-licensable, royalty-free, worldwide license"

    When you understand image or IP licensing terminology, it's nothing to be worried about.

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  11. 'As for the "Not said" comment, completely false and untrue. Your sources are quite bad.'

    Really? All of it? WOW!

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  12. 'Cage Warriors does employ one of the most passionate and knowledgable MMA guys I have ever met and one day he will leave Cage Warriors and become one of the most memorable MMA figures in the history of the sport. His name is Ian Dean. With no regards in how he feels about this situation, this guy is top notch and I urge someone real in the MMA community to take notice of him!'

    I would imagine that Mr Dean would take this as a backhanded compliment given that most if not of all of the European MMA scene movers and shakers are fully aware of his gifts, prowess and contact information.

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  13. I'm curious about one thing:

    Do you have a signed release form from Dan Hardy? From what I understand of copyright law, you technically couldn't sell the image in question to The Fight Mafia, since it would be violating Dan Hardy's right to publicity.

    If you couldn't sell the image to them in the first place, are you technically entitled to damages? It seems that Dan Hardy would have more of a case against them, since they're using his likeness for commercial benefit.

    Of course, if you have a release, it's a non-issue.

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  14. @FireInTheChoir

    Dan Hardy is sponsored by Fight Mafia; they pay him to wear apparel with their designs and logos - therefore Dan Hardy directly benefits from their use of his likeness.

    Even the websites states the following

    "©All Rights Reserved© Copyright 2009 www.danhardybandana.com is owned and operated by Dan Hardy MMA Brand & The Fight Mafia C.O. 2009 Copyright ©All Rights Reserved©"

    The original photograph was never intended to be used in a commercial fashion and thus no model release was obtained; regardless of that fact, it has been used to advertise a product for sale from which Dan Hardy receives either direct or indirect financial compensation...

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