Dear Congressman Hayes,
I have a few questions for you and request your help in answering them.
I'm in a bit of a quandary. You see, a man of high position has allegedly violated my rights. I thought I'd bring the problem to you and ask you what you would do in the same situation.
Here are the details:
On August 4, 2006 I published an article/blog post about Larry Kissell's big promotional gas event that was held in Biscoe, North Carolina. I personally attended and took photographs of the event. I own the copyrights to these photographs. I have never released these photographs into the public domain.
Please follow below the fold...
Around October 11, 2006 I received some disturbing news. A friend recognized one of my photographs on a political mailer that a candidate for Congress had sent to her home address. Once I received the mailer from my friend, I immediately recognized the photograph of Larry Kissell as one I had taken and used on my web site. I had not given permission for anyone to use that photograph.
I didn't know what to do. I don't usually sell my photographs, and I don't like the idea of my intellectual property being used without my permission. I took some time to think about it and I spoke with an attorney to help me decide what the best course of action would be.
I'm not a litigious person. However, I do believe in standing up for my rights. It isn't about money. It's about doing what's right. That is something with which I'm sure you would agree.
I decided to send the person/campaign who had used my photograph without authorization a Cease and Desist letter. In the letter, I made certain very reasonable demands, without first jumping into court. That letter was dated October 14, 2006 and was mailed on October 16, 2006. The person/campaign was given 14 days to comply with my requests.
According to US Postal service records, the letter was received on October 17, 2006. I am working under a reasonable assumption that the letter was opened immediately, because during this time campaigns are responsible for sending in 48 hour notification of contributions to the FEC.
To my shock, three days after receiving my Cease and Desist letter (as verified by the delivery confirmation through the US Postal service) the heart of the photograph in question - Larry Kissell's face - once again showed up on a promotional mailer sent out by this same candidate. On Friday, October 20, the mailer was received at the home of my friend. The portion of the photograph was printed on the front and back of the mailer. Since it was the focal point or heart of the original photograph, it was still protected by my copyright and, once again, should not have been used without my permission.
I hope you can imagine how this made me feel. I had tried to be reasonable and handle this situation myself and yet this candidate/campaign had used my copyrighted photograph a second time without my permission, after being informed I owned the copyright on the image and after receiving my specific demand that they not use it again. I know it sounds outrageous and bizarre, but it's apparently true.
You might be able to advise me of some avenues to take. However, before you do, let me save you some time and tell you the steps I've taken to this point.
First, I contacted the Federal Election Commission. As you know, candidates for federal office must be very careful about filing accurate returns to the commission. They must be certain to claim "in-kind" donations for anything of value they receive and use in the course of promoting themselves for office. I figured that my photograph must have value since it was used not once, but twice. I searched this congressman's FEC filings and I don't find an in-kind donation that would cover the use of my copyrighted photographs on the mailers. The two people I spoke with at the agency were amazingly helpful and friendly and instructed me on the method for filing a formal complaint. Admittedly, the law doesn't specifically cover in-kind donation given without the "donor's" consent. Apparently, this is a loophole, but not one that I can imagine a respected member of congress would be caught stepping through. Hopefully, my notarized letter and fully documented formal complaint to the FEC will help seal this loophole so that others aren't tempted to use it.
After a brief conversation with the folks at the US Attorney's offices in Winston Salem and Greensboro I decided to see if a copyrighted image was considered stolen property by the US Postal service. I'll be sure to let you know once the postal service responds to my inquiry.
I've spoken with an attorney and professional photographer. Everyone has been very helpful but seem to be a bit amazed that I'm simply interested in standing up for myself by urging this person to take responsibility for his actions.
On Monday, October 30, 2006 I received a letter from the congressman's attorney. Let's just call this lawyer Mr. Judge N. Jury so we don't give away his identity without his permission. What Mr. Judge N. Jury doesn't seem to understand is that there's this pesky little thing called the copyright law. When I sent my letter and informed the congressman that I owned the copyright to the picture he was, in my opinion, doubly obligated to honor my rights. I say doubly because I didn't have to send the letter at all to assert these rights or to make them enforceable. A photograph, article or any other copyrightable material does not have to be marked in any way in order for the rights of the owner to be protected. I didn't have to assert anything. The copyright law takes care of all of that for me.
Apparently, Mr. Judge N. Jury disagrees with my requests. I wonder what you think, Congressman? Do you think an average citizen should be able to protect her property from being used by someone without her permission? Do you think an average citizen should have her rights trampled by the wealthy or the powerful? What do you think, Congressman?
Mr. Judge N. Jury happily informs me that the photograph is no longer being used and that the congressman,
is accordingly willing to consider this matter closed.
Well, I just bet he is! Wouldn't it be nice to be able to allegedly violate someones rights and then be able to exonerate oneself by contending......... it's no big thing because I'm not going to do it anymore? I sure wish I was rich and powerful.
Thanks for listening, Congressman Hayes. I look forward to your response.
Your average citizen,