This is not my regular type of post. There is only one photo, the rest is all words 3,877 to be exact, counting the title. Printed out it would be just over four typewritten pages with Arial 10 font and 0.75 inch margins all around. I say all this as a warning In case you’re not into reading such long posts. I’ve been working on this for about two months off and on and yesterday I came to the point where it was time to finish and stop fine tuning. I apologize if it still sounds kind of rambling.
Late last spring I stopped posting for a while. My last post was on May 5, 2017 and I didn’t post again until August 8, 2017. Why I stopped isn’t important, or that interesting, but why it took me so long to start again might be.
About mid-June I was ready to start posting again after about a 45 day hiatus. I had started reading an art history book and that got me wanting to take pictures again, but something came up that put that on hold and kind of put me on a quest.
On the morning of June 20, 2017 I was at the kitchen sink washing a head of lettuce and a bunch of grapes as I was getting ready for lunch. I had the TV turned on to KSDK-TV the NBC affiliate for the St. Louis market. The program that was on was Show Me St. Louis. I guess the name pretty much describes the program. I think the program has been around awhile but I’ve never watched it, just happened to be where the TV was set when I turned it on. Like I said the TV was on but I wasn’t watching it that much … until.
Until I heard the show’s host say Nora’s. Nora’s is a hole in the wall sandwich shop in Dogtown, the Irish neighborhood in St. Louis. Nora’s caught my attention because it is one of my wife’s favorite sandwich shops due to the fact that they have gluten free bread. I went back to my work and heard the host say something like “last on the list is Courtesy Diner”. Courtesy Diner is another one of our favorite no frills eating spots. There are three of them in St. Louis serving typical diner food, i.e., anything that can be prepared on a hot flat iron grill.
I looked up from my work again and could not believe what I saw. There was the host talking, but nothing was registering with me, because the background behind her was a picture of one of the Courtesy Diners. In an instant my mind went from unbelievable to shock to what the ___ . Their background picture of the Courtesy Diner was the same as the 16 inch x 9 inch framed print on the kitchen wall behind me. To make sure I stuck my face up to the TV to look at the people in the diner window, turned around, hurried to my print to examine it, turned around, jumped two steps to the TV and examined it again just as the show ended. Damn, that lady was using my photo on her TV show..
I was so dumbfounded that I didn’t know what to do. I was also more than a little pissed. Who the hell were they to be using one of my photos without my permission. The more I thought about it the madder I got. By the end of the next day I was calm enough to try and contact the host of the show to find out what was going on.
I went to the KDSK-TV web site to email the show’s host. I couldn’t find any way to contact her or anyone else at KSDK-TV for that matter. It appears none of their news, weather, sports, or other local programming people want to be contacted. They did have a contact email link though for the Show Me St. Louis program. I sent an email stating what I saw and when, and I asked why they thought they could broadcast my photo when had not given then or anyone permission to do so.
The reason I worded my email that way was because at the time I was not real sure of copyright law. I knew that my work was automatically copyright protected when I took the picture but I also knew there were some “fair use” situations. I also knew that since I hadn’t registered my copyright, the only damages I could collect would be the normal fee that would have been paid. Had the photo been registered I would be eligible for statutory damages and attorney, fees if I proved my case.
When a photo is not registered there is really no economically feasible way you can get an attorney involved. One wouldn’t want to take on a case that at most is going to recover a few hundred dollars which, with cost, would not even result in a break even proposition for the attorney.
In the meantime I was telling people what had happened. One person said that they knew what KSDK-TV did was in no way right, but didn’t I feel just a little bit flattered that they chose my photo. My answer was an emphatic hell no. Someone basically stole something of mine, I am in no way flattered by that. The needed a specific photo, found mine somewhere, and used it without asking to avoid paying a fee to an agency like Getty Images. Suppose someone stole your car, took it for a joy ride, and then returned it. The reason they took your car was because it was the nicest looking one on the parking lot. How flattered would you be?
A week after sending my email to the Show Me St. Louis people I had not received a response. Now my fear was that they were going to be sleazy about this and just ignore me rather than admit they did something they shouldn’t have done and apologize. After all they probably knew more about copyright law than me and would realize if they just ignored me the chances were great I would not take legal action because because of the costs vs. return.
I decided to try one more approach. I did a web search to find the name of the general manager of KSDK-TV. I found it and also discovered that KSDK-TV was part of a larger company called TEGNA and according to their web site they have: “… 46 television stations (including those serviced by TEGNA) in 38 markets from coast to coast.” The vast majority of them are affiliated with a major broadcast network, so I’m not dealing with some small time entity here. These are people whose business is to create content that advertisers will pay for. I have to believe they understand copyright law and put forth great effort to protect the content they create. And yet they have infringed upon my copyright work and are ignoring an email I sent to determine why the infringement.
My next step was to contact the station manager. One June 29 I wrote a letter to the manager explaining I had sent an email to the Show Me St. Louis on June 21 and had not received a response or even an acknowledgment of receipt of the email. My letter was polite and to the point with the last two paragraphs as show below.
“As pointed out in the email I have never given any person or organization permission to use that photo. In fact, no one has ever asked for permission to use the photo.
The question I hope you can answer, or at least facilitate the process for obtaining an answer, is why the people at KSDK TV who were involved in creating and broadcasting this story thought they could use my photo without my permission?”
At this point I started planning what my next step will be. My thought was if the station manager does not respond within a week I’ll file a suite in small claims court. So I’m back on the internet researching Missouri small claims court requirements and procedures. I’m sure I have sufficient evidence to prove the photo is mine and I know KSDK-TV has nothing showing I granted permission for the use of the photo.
After a week there was no response from the station manager. Now I was sure they were ignoring me knowing there was very little I could do without spending a ton in attorney fees and costs. I’m sure they figured I would eventually go away.
As I was researching Missouri small claims court procedures I also started delving deeper into copyright law. I figured I’d need to be able to reference specific sections of the law so I was looking for good references on-line. That’ s when I hit a major setback. Turns out the copyright law specifies that claims must be filed in a federal court. So much for my grand plan to meet Judge Judy. This discovery really was a kick in the gut. Now I have no way of taking KSDK-TV to court to show that someone at the station infringed upon my copyright. I can’t afford hundreds or thousands of dollars for even just one court appearance let alone how many it might take.
What really got me pissed off about this was that here was a large corporation with various network affiliates that relies on the copyright laws to protect its income producing assets and they were violating the law and getting away with it just by ignoring me. I was now as mad as I was the first day when I saw my photo on the TV screen. I felt hopeless. I didn’t see any way I could get justice. I was playing my namesake in David and Goliath but I didn’t even have a sling shot.
In frustration I deleted all my photos (several hundred) on the web site that hosts them. Since my WordPress blog links to the site for my photos they all disappeared from my blogs. A photo blog without photos is not very interesting so I deleted all my blog posts. That amounted to just over three years of blogs totaling a little more than 150 posts.
At this point it looked as though I should just forget about it and get the whole thing out of my system. I had really been kind of obsessing over it. I hadn’t done any post processing during this time nor taken any pictures (except friends and family). Work was stacked up and photo inventory was not being built. But I just couldn’t let go. I couldn’t just walk away from it and say okay KSDK-TV you essentially stole my photo; you know it and I know it, and you know you are able to get away with it by ignoring me.
These slime balls had really gotten to me. The least I could do was give them the finger (metaphorically) as I walked away. I decided I would have an attorney send them a demand letter. Nothing would come of it, it would be a waste of money, but it would probably make me feel better knowing I did something. Also I thought maybe at the beginning of the year when the TV stations ask for public comment in connection with renewing their broadcast license I could get my story in there with evidence of their no response to me or the legal demand letter.
Back online again looking for a copyright lawyer in St. Louis. I found one that offered a free initial consultation. I sent her an email explaining the situation. I told her I knew that since the photo was not registered I knew that all I could recover would be a normal usage fee; no attorney fees, no punitive damages or anything else. I told her I would not be suing KSDK-TV but wanted to send a demand letter. The attorney wrote back saying she didn’t think she could help but said she had contacted another attorney, gave her the jist of my story, and thought this attorney could be of better help than her and the attorney had told her it was okay to refer me to her.
I called the attorney I was referred to and explained my story. I told her about the correspondence and how it had been ignored, even the letter to the station manager. I didn’t tell her the name of the TV station, just that it was one of the major network affiliated stations in St. Louis. She told me what I already knew about my limited recourse. I explained that I knew that economically it would be a huge waste of money on my part but that I would be interested in sending a demand letter from an attorney as parting shot as I walked away from the whole ordeal. By now it had become and ordeal that was eating at me and I was ready to admit I lost and wanted to get it out of my system and move on.
I asked her what it would cost to send a demand letter. She said a demand letter would cost 200 dollars. Gulp. That was about twice as much as I thought it would be. I told her that I wouldn’t be asking her to send a demand letter because that was more than I could really justify. I told her I appreciated her time but I’d just be moving on.
She said she understood but had a suggestion. She suggested that I send KSDK-TV and invoice for the use of my photo. I told her thanks for her time and the suggestion and hung up. So now I had done all that I could and was starting to feel like I could walk away from this and not wake up in the middle of the night trying to think of what I could do.
Problem was it turned out I couldn’t walk away. Her invoice idea had started gnawing at me. I started looking at the problem differently. What I had here was a case of spilled milk that I was crying over. The milk was spilled, it was not going back in the bottle. The mess needs to be cleaned up. My picture had been illegally used, it can’t be unused. I needed to clean things up. Normally if a photo is used in the way mine was payment is given for the use. I need to try to clean up the payment mess.
I went to my archives and got the original jpg photo (this was before I started shooting everything in raw), an intermediate tif file, and the final tif file. In my photo editor I put notes on each file explaining what stage of the process the picture represented and what I had done that made the second file different from the first and the last file different from the second. I uploaded them to Walgreens and had glossy 8x10s printed.
Next I went online, found a site with free invoice templates and downloaded one. I opened up the template in Excel and added my name and address for remittance, phone number and email address for questions, modified the “description of item” section so that below the words description I also included a box for a thumbnail of the photo, and, as a final touch, I added a nice cryptic invoice number. (Wouldn’t look to good to send out invoice #1.)
I wrote a second letter to the station manager at KSDK-TV (sent certified mail); my third piece of correspondence with the station. I said that the lack of response led me to believe that they probably realized they did something wrong and hoped I would give up and go away or they thought I was just some sort of crank. I told her I wasn’t a crank and that I was not going away.
I went on to say that since it was impossible for them to show any evidence that I had given permission to use the photo I was enclosing evidence that the photo was mine.
I enclosed three 8×10 prints and in the body of the letter I had three numbered paragraphs with top line explanations of what each stage of the post processing represented.
I then advised that an invoice for $200.00 (due upon receipt) was attached for the one time use of my photo on June 20, 2017 and that the photo could not be used again without my permission.
This was all sent on Thursday August 10, 2017. As of Monday August 21 (eleven days after sending the second letter and invoice) I had still not received a response. I told my wife I was done, I had done all I could and I was going to try to forget it now. The slimy, unethical b@$#@%%$. at KSDK-TV had won. It was hard to let go. The first couple of nights I laid awake trying to think of what I could have done different to get a dialogue going and, even though I said I’d dropped it and was finished, I tried to think up new ideas to do. Unfortunately the only ideas I could come up with would probably get me arrested for trespassing or stalking or some other idiotic behavior.
On Friday August 25, 2017 (fifteen days after sending the second letter and invoice) I received a check in the mail for $200.00. The check was from TENGA, the parent company of KSDK-TV. I cannot adequately described how relieved I felt when I opened the envelope and saw the check. Sure I still hadn’t heard from anyone at KSDK-TV but seeing that check magically released a very heavy burden that I had been carrying. For a little over two months thoughts had been buzzing all around in my head about what should I do, what can I do, they don’t appear to have any ethical qualms about violating my copyright. Do I just forget it, do I need to drop everything related to the incident and just move on; all those thoughts suddenly disappeared. It wasn’t the $200.00 that brought all this mental relief, it was the fact that someone had finally decided to stop ignoring me.
Now for the somewhat embarrassing part. For reasons that, like my D7100, are complicated, our phone with an answering machine is located in an out of the way place. We can and often do go days without noticing it which means we can go days without seeing the blinking light indicating a message.
Three days after receiving the check I noticed the phone’s message light was blinking. I picked up the receiver and pressed play. It was a message from the President and General Manager of KSDK-TV. The message was from the prior Friday, the same day I received the check.
The president and general manager had actually called me and left a message. She said she had received my letter and all my documentation and apologized saying that she thought things had already been taken care of by the Show Me St. Louis staff. She said a check had been cut and sent out to me and apologized for the use of my photo and said that it should have never happened. She ended the message by giving me her direct line phone number and invited me to call if I had “any questions, concerns, or just wanted to vent”.
So I ended up with three things that earlier in the month I would have thought were never going to happen. I had a check for $200.00, an apology from the president and general manager of KSDK-TV, and acknowledgement that this should have never happened. So now I’m a happy camper? Yes I am but ….
While the bitterness that built up in me from the time I saw my photo on TV until the check appeared in the mail has gone away (and that’s good), I’m left with a feeling of little respect for KSDK-TV, primarily the people associated with the Show Me St. Louis show and the General Manager and President of KSDK-TV.
Why a TV producer (or whoever was in charge of the show) working for a major, network affiliated, TV station saw nothing wrong with allowing the show to violate someone’s copyright seems incredible. To me it boils down to a lack of ethical integrity. The fact it appears there are no effective checks in place to ensure that the station has the right to use the content they broadcast makes me think that the integrity of their product is not a big concern of theirs.
Additionally the show’s staff didn’t get back with the GM to let her know they were handling it (because they weren’t) and the GM was not concerned enough about the issue to follow up on my request to find out why my photo was used without my permission until I wrote a second letter demanding payment. Pretty sloppy organization with a weak chain of command in my opinion.
The one other thing that gives me pause is the phone message the GM left for me. Like I said I was greatly relieved when I listened to the message and appreciated her apology but she apologized for the “inadvertent use” of my photo. She stumbled over the word “inadvertent” like maybe that wasn’t the word she was going to say at first or was looking for the right word. I don’t believe the use of my photo was inadvertent. I see nothing inadvertent about going to Google, doing a photo search for Courtesy Diner, and picking a photo out of the dozens available. That looks pretty deliberate to me. (I’ve since presented the site that was hosting the photo without my permission a formal and DMCA compliant Notice and Takedown. The notice was complied with very quickly without question.)
So, what’s different now? I’m 200 dollars richer, I stopped taking pictures and processing existing photos for over a little over three months so I’m just now finishing up on my 2016 photos, and I now put a copyright notice on my photos that I put on the hosting website I use for this blog.
I know the copyright watermark won’t stop all people from copyright infringement and that if you put creative content on the internet whether it be photos, paintings, words, or music, or anything, chances are someone will use it without your permission. I’ve always known that and was and am willing to put up with the risk. However, I always assumed it would just be some deadbeat blogger that did it, I never imagined it would be an entity like KSDK-TV.
So, if you managed to not nod off and read all of this, thank you.
P. S. This is the photo in question.