Photographer Set to Sue SyFy/NBC for Copyright Infringement

Photographer Set to Sue SyFy/NBC for Copyright Infringement

It's amazing that large media corporations continue to believe that they can get away with things like what you're about to read. Darrell Ardita, a cosplay photographer, recently discovered that several of his company's images were being used without his permission for the show Heroes of Cosply on SyFy. Yes, a nationally televised show pertaining to a very specific community opted to steal the images it intended to use rather than ask and pay for them as they should have.

Naturally, they got caught.

Not that it matters at all but SyFy did use a third party to seek permission from the creators of the images and many apparently signed over the rights for free (ridiculous). However, they did not/could not contact all of the photographers and still chose to use the unlicensed images. That's where Darrell Ardita did what many photographers are afraid to do...fight. He and his associate photographer Bryan Humphrey (the one responsible for the images) armed themselves with proof of the violations as well as proof of their ownership and set to invoicing SyFy for the unlicensed usage.

The legal penalty for willful copyright infringement is up to 5 years in prison and up to $250,000 per offense. There are eight offenses in this case. Despite the considerable reimbursement they could gain by taking this straight to litigation Darrell and Bryan offered a settlement of $28,000 total for proper licensing and a small fee for the infringement. As the story stands, SyFy/NBC has tried claiming ownership through permission from the subjects in the photographs. The justification here is co-authorship which would mean that both the photographer and model had an equal part in the image creation. It should be noted that this can only be claimed in a written and signed form from the photographer.

No such form had been signed.

The story is still in development and as it stands the ball is in SyFy's court. They have been given a deadline (September 24th, 2013) to settle by before it enters litigation. Given the scare tactics Darrell has reported the network resorting to I'm very curious as to how this plays out.

You can keep up with the progress of this case on Darrell's Blog


Also, if you'd like to voice your opinion after familiarizing yourselves with the are the email addresses of the fine folks at NBC that can do something about this:

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Looks like SyFy will now have to cancel production of Tornado Shark.

The photographer should go to court after they tried to settle with the company. From how it is written I lean to believe that the photographer is looking for suing the big company because it is an oportunity to make lot's of money not because something horrible happend to him. Being in America, I cand understand this behavior. But being in Europe, he should have settle this outside the court.

Did you actually read any of the article?
He is offering them a month to settle at a fair usage rate with a license included for continued use as per the invoice he sent and proof of original ownership - outside of court.
If they refuse - then he has the option of taking them to court where any damages awarded WILL be significantly higher. As in up to $2 million as opposed to the $28k he has offered to sell them the license at.

Philip Ng's picture

It is something horrible that happened to him, and others, and he's giving them a chance to make things right before taking them to court for more. NBC's stance? Blame game and making excuses.

Learn to read?

Spy Black's picture

I guess they discussed the out-of-court settlement idea with a lawyer, but $28,000 total versus a potential $2,000,000 sounds kinda low balled to me. It doesn't seem intelligent to me.

Well the court does state up to $250,000. The court could easily come back and say well you're current rates for a commercial project is 5K so we will award that.

yeah, the photographer's side, at least has the settlement offer in his favor...

courts hate when parties go right to litigation with unreasonable demands, and the settlement offer seemed like a good-faith reasonable resolution to the dispute, so as the plaintiff, with judicial notice of the offer, they come out of the gate already appearing reasonable... which the defendant should have accepted.

the defendant could end up paying much more in punitive damages (if available) if they end up coming off as heavy-handed.

I'm guessing they used average rates for photograph copyright licenses in the industry. The entertainment industry spends more than you might think paying to license the stuff it uses.

The law allows the full $250,000 per instance, per use of each image, a settlement would be less, but if it went to court, the court would likely issue two judgments, one for the damages, which would be at the very least an established commercial value based on an industry standard, ie; ASMP Pricing Guide or a random selection of three competitive rates, then there would be PUNITIVE damages since there is WILLFUL INTENT to violate the copyright protection offered by Title 17 of the United States Copyright Act/1998 Digital Millennium Copyright Act. It's those punitive damages that could be far higher than the previous damages awarded. PUNITIVE damages are a Judge's way of spanking or convincing a violator that they should not continue this practice.

Any agreement between models or person included in the photos is moot. Title 17 is clear that the Photographer is the sole and exclusive owner of the image at the moment of it's creation, unless the Photographer is working FOR HIRE as an employee of a company/agency for which his duties are to create images. Outside of that exception, the photographer who created the image is the sole and exclusive owner, unless they voluntarily sign all or part of his ownership away by a contractual agreement.

If the photographer did not sign a contractual agreement, which it says he did not, then he is the sole owner and is protected by law, how far he wants to go to settle the case, what damages he seeks is up to him. He can take the easy way out and settle for a much smaller award or take his case to court where the numbers will vary, possibly lower on the damages end, but very likely higher on the punitive end as is often the case. LOSING the case would be all but unheard of since the only qualifier he is required to meet is proving he is the creator/owner of the image. It will be the defendant that has to prove they were given permission, otherwise... they lose!

this reminds me of the case where Daniel Morel sued AFP for 120 million over twitter photos
- they even ignored his call hoping it goes away lol

$2m is the maximum allowed by law, that's it. A lawyer will tell you to start with that because it shows you want to try hard to get as much as you can, and you're likely to get less in the end... So the higher you start, the more you end up with.

SyFy is wrong. The images don't belong to the people in them. They belong to the photographer that took them. That's why you have to pay the photographer hired for professionally taken photos - school pictures, graduation pictures, wedding photos, etc. Otherwise their work would always go unpaid.

Lawsuits are based on the worth of the company being sued. There is no cap I believe. A friend of mine recently found his images were being used illegally by a small no name guitar string company, after the lawyer's commission he still got far more than 28,000. The lawyer in this case is making a grave mistake. The courts will side with the copyright owner, and you sue on the worth of the company, Thats the law. It not about suing, but I do not feel bad for these company's that know they are stealing all because they do not want to pay the photographers the small amount we would get.

So SyFy cares whether people pirate their goods but doesn't care if they pirate the work of others? Honestly, he gave them a CHEAP ultimatum. Why are they even fighting this?!

I would look into an injunction, barring the airing of any more shows until it has been established that ALL rights to creative material have been properly and legally secured and verified by the defendants.

Not a good move. The best thing for anybody in this situation is to go ahead and let them make money and take your cut. Think about it. When you sue for damages do you want a piece of a very large pie on a show hat has made money or shut them down so they make no money, call the show a loss and fight you for the crumbs? They've already broken the law. They'll lose, and pay.

But if you can get an injunction, they're more likely to settle out of court for a decent amount ASAP.

I'm not super up to date on the legality of it all but how do the copyright holders of the original IP being cosplayed calculate into something like this. If a cosplayer makes a costume depicting batman, then a photographer takes a photo of that cosplayer wearing his batman outfit does the photographer not need DC comics permission to use that photo commercially? Does SyFy's usage in this case count as editorial?

Kinda a weird curveball to think about?

(NOTE: I am from Canada and am not a lawyer, am just curious, I am not super up to date with american law)

Philip Ng's picture

Depends on how it's used. Editorially, you can take a photo of a cosplayer dressed as Batman and use it for an article, as it's event coverage.

Selling prints on the other hard would require you, a cosplayer, to get permission from DC Comics and the photographer. Most cosplayers selling prints don't secure permission from the copyright/trademark holders, but at the same time the waves are small enough that the companies, Time Warner (parent company of DC), in this case probably wouldn't care. They'd spend more money setting up the case, than what would be rewarded.

The photographer would need Time Warner's permission to sell the photo, but if the project is small enough they could slip under the radar. It really depends on if there's a challenge on the trademark or copyright, depending on how it's presented by the photographer (e.g. here's a photo of Batman vs. here's a photo of Joe as his favorite character, Batman). The photographer would also most likely need the cosplayer's permission too, as cosplayers in most U.S. states have publicity/personality rights, unless these have been signed away or negotiated in advance.

The other issue is most conventions are public spaces, and there's a disclaimer that as a badge-holder, you, by entering the venue, voluntarily submit yourself to being filmed and photographed. So in such a situation, a waiver/release isn't needed when the photo is a candid, as the purpose when used commercially will most likely be either as part of an editorial or art.

There's a lot of facets to the photography of conventions and cosplays, and it gets annoying. Still the main issue is the copyright of the photo, which belongs to the photographer, unless signed away or sold (privately or as a work-for-hire).

I have two similar cases under my belt - Cant tell you how disrespected I felt. They shouldn't of offered such a low settlement( attempted ). SYFY would of probably brought it down to that amount as last resort to close the case( if they charged the full amount) . " co-authorship " haha such bullshit - its funny how much corporate b.s you hear when going through these things . some make sense and some don't . In both cases google searches have helped me win the cases.( good to know your copyright laws ) The one thing I learn't from this is that the person handling the case only cares about bringing the company's expenses down( or avoiding the charge) - so don't attach your emotions when handling this - Be a little heartless " they didn't care when they took it from you and they're well educated on how to ask permission but chose not to. "

Do you know how much these corporate lawyers make by the hour while "working" on these settlement cases? And if you don't have the $$ to make it to trial, they can actually win!

I went to a graphic design lecture/panel discussion about a week ago and a well-known designer is going through the exact thing with Disney & Target. She has since had to let go all her staff and office to keep fighting.

sad to say what movie companies and tv companies will do. When i visited the little alien inn near area 51 owner said when tv crews were supose to film there in tiny print on the contract they tried to make it so everything she sold in the store even before they filmed there now was property of the tv or movie company ..

My guess here is that whoever has the most money will win this process.

I hate to break it to you, but as a professional photographer having just gone through something very much like this with a major tv network and documentary producer, the chances of receiving a settlement with this many zeroes is slim to none due to the fact that the images were not registered with the copyright office prior to the infringement. You cannot even FILE a case without proper registration and you are grossly exaggerating the price that producers pay for these types of images. Good luck to you but I would not get my hopes up. More reason to register every image and it's not that difficult to can register hundreds of images at a time. I can maybe refer you to an intellectual property attorney that would consider working on contingency.

You're wrong. You can definitely file a case without "registration". It has happened before and it will continue to happen.