So let me get this straight...

[pxl8]

Ok, a new thread about the 2 times the local paper has gotten it wrong and how I finally realised they've got all the rope they need...

The Copyright, Designs and Patents Act 1988 has a section about "moral rights", one of which is to be identified as the "author". Now there is an exemption for the right when the work is being used to report current events in a newspaper, etc. So the shot of the running club members is exempt and that's why I included a credit requirement in the terms of use.

BUT.....

The shot that was used on the cover of the wedding supplement wasn't reporting on a current event, it was basically a bunch of adverts. So my "moral right" was valid and the newspaper are liable. Now had they given me the credit and editorial which formed their end of the agreement I think it's fair to say I would have picked up at least one wedding booking - the newspaper can't really argue otherwise or they'd also be admitting advertising with them is pointless. That they also took credit for one of my shots this week only weakens their position.

So my damages should be at least the value of a wedding booking.

Anyone see any holes in the logic?

 

[Double_Agent]

Yes a major hole.

There was no guarantee of making that Wedding Booking and that is how a court of law will see it also.

Advertising is just that - Setting yourself up to show people what you do / how you do it. Getting someone to take your service from the advert or pictures in the Wedding Supplement is not guaranteed.

Im still with you on this one though and you should fight for the moral ground.

 

[Hacker]

I understand how frustrating it must be but I think if you go in with all guns blazing they might shut down on you. I would suggest a negotiated compromise with the hint of litigation in the background just to let them know you are not a pushover and have a business to run. As a starting point I would suggest a free stand at the next three Wedding Fairs organised by them ( I presume they run them - most papers do) and from that position you can negotiate down a bit. The chances are you will pick up some bookings from the fairs and hopefully this will go some way to recompensing you.

Good luck!

 

[pxl8]

I've approached it from a "we've got a problem here, how are we going to sort it out" angle. I've explained the legal problem of not providing a credit and in light of the latest error I would like to them to reconsider their offer to put things right. So the ball is firmly in their court to come back with an offer and I'll go from there...

 

[pxl8]

Yes a major hole.

There was no guarantee of making that Wedding Booking and that is how a court of law will see it also.

Damages are designed to put the claimant in the position they would have been in had the contract been completed, the loss is an "expectation loss" based on what could be reasonably considered to have happened.

Let's say I would have got 10 enquiries and only converted one to a sale - I actually average 80% conversion so claiming for only one booking is being very reasonable IMO.

 

[J Gordon]

The Court wont consider 'maybe's' though and it is better to keep the Local onside. You haven't really got a case worth fighting despite the legal position. Personally I would suggest that you explain in addition Copyright you only supplied an image on the basis that you would receive a credit, which is an inducement to contract that has not been fulfilled by them.
A sensible compromise would be some free advertising to you in the paper that you are satisfied with. This should also encourage them to respect and implement credits and straplines in the future.

 

[pxl8]

A court would look at reasonable expectation - what a reasonable person would expect to happen had the agreement been fulfilled.

I've just spoken to the person who dealt with the wedding supplement and he agrees that I would have made at least one booking and wants to discuss what they can do to compensate me to that level of loss. I told him that the other issue needs to be sorted first as the outcome would likely affect my decision. Free adverts isn't something I really want, they simply don't bring in the business so would just be a waste of time. The paper knows that too, the only time photographers advertise with them is in the wedding supplement.

 

[pxl8]

A bit of progress, they've just agreed to pay for using the shot of the running club...