I an email with images to one of 3M’s business units and it was very well received. I got a follow-up email the next day requesting rates for a 20k run publication.

After submitting rates that were very competitive, I received an email from them “hoping they could provide me 3M products in leiu of a photography fee”

Sorry, 3M. Your products won’t pay my rent.

Like post it notes!

Too bad for the fellow with the original idea.

thanks for that very thoughtful and articulate response. I have to say that I find it personally gratifying when people like you back up my initial gut reaction that this incident qualifies as a breach of copyright. I’ll pass your recommendations along to Scott.

The issue, however (IMHO), is not primarily one of legality. While a lot of the discussion seems to have veered off in that direction, the glaringly obvious, head-smacking stupidity of the whole thing is the PR backlash 3M has brought on itself.

Corporations already have so many things going against them when trying to go viral, that bringing the original creators of the Post-it Note Jaguar on board should have been a no-brainer.

3M fully admits to having seen the image by their attempt to license usage rights for “in-store displays for six months.” Licensing for specific purposes is one of the contributing factors to the value, versus buying the copyright outright for any and all uses, which would have the highest value. The fact that the photographer originally had no intent to earn money when taking the photo is completely irrelevant and in no way reduces the value. That would be like saying that a Leonardo da Vinci sketch is valueless because he never originally intended to sell it like he did his paintings and sculpture. That value is determined by the parties involved AND in the case of infringement, by history of similar sales, not only by the photographer in question but by other photographers as well.

To the Intellectual Property Attorney that said this is NOT copyright infringement I will only say that I have read of cases on much shakier ground win in court. Also, you did not say which side of the aisle you sit on in court. I agree with Mr. Heller’s post and offer a couple more examples, the first substantially different from the 3M case but important in seeing the breadth of copyright infringement and how the courts protect producers of intellectual property. There was a case of infringement brought against an artist copying a photographic poster of puppies in his production of bronze sculptures, completely different mediums. (The photographer was notified by a colleague who new the poster about the infringement. The photographer attempted to negotiate a fee with the artist before filing the suit.) The artist lost the case. As incredulous as it may sound, the artist did the exact same thing with another photographer’s work. This photographer filed suit after failed negotiations with the same results. A very similar case to this 3M issue: a large company which I will refer to as GD attempted to lease a photographer’s image of a wheel chair on a porch. They did not come to terms. GM actually provided a copy of the image (layout) to another photographer to emulate. Nothing except the “feeling” and composition of the image was the same yet the judgment was against GD.

That’s where the courts come in. I have seen many photographers compensated generously in copyright infringement cases when their ducks were in a row, but that is no guarantee. I have also seen cases that appeared to be legally strong for the photographer get thrown out, usually in a court that has had little or no experience in copyright issues or perhaps hiring a substandard IP attorney. As has been mentioned in other posts, registration offers additional protections and rights. But the copyright itself is established upon creation and as such affords specific rights. A favorable court could even take into consideration the rates of other photographers for similar works and award an amount higher than the original asking price by the creator of the photograph, especially if he considers the infringement to be egregious [Merriam-Webster Online Dictionaryā€”conspicuous; 1.obvious to the eye or mind, 2.marked by a noticeable violation of good taste].

Often times big companies think that no lawsuit will be filed because of the uphill battle before the “little man.” If I were the photographer I would approach the legal departments of ASMP (American Society of Media Photographers) http://www.asmp.org/, PPA (Professional Photographers of America) http://www.ppa.com, and/or APA (ADVERTISING PHOTOGRAPHERS OF AMERICA) http://www.apanational.com who have a long history of standing up for cases like this and see if they might like to help out.

I’ll not get involved in a discussion as to what is fair compensation in this case but I will say that in my opinion 3M stole from the photographer by not being fair or friendly (copyright infringement is theft). Taking the food out of the mouth of a fellow photographer, professional or not, has forced me to reevaluate my future association with 3M and their products Very sad because 3M had roots in the imaging business. I might even line the inside of my barbeque grill with my remaining Post-It Brand Notes and fire it up in protest before I go and purchase a competitor’s brand.