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Guaranteed to raise a smile, but is it real?

by Darren

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Well I hope you had a good Christmas.  The dolphin’s perma-smile is both guaranteed to bring a warm glow, and also the biggest deception in nature because humans think they are always happy.  By supporting swim with dolphin experiences or dolphin shows you are supporting the capture of these beautiful creatures, and the brutal murder of their family members who aren’t chosen by trainers.

It’s still Christmas so I’ll leave the negative stuff there, but if you haven’t seen the documentary film ‘The Cove’ then I’ll urge you to make it your New Year’s resolution.  And please don’t visit these places.

I’m pleased to say that this particular dolphin was swimming free when I saw it – at Abu Nuhas reef in the Red Sea.  I’ve been fortunate enough to see dolphins there twice this year.  On the second occasion there was an opportunity to slip into the water for a brief few frames.  I’m hoping I’ll get another opportunity in 2013, but you can guarantee the only way I will see and photograph dolphins (or any other wild animal) is in the wild!

Hope you enjoy the picture.

How I used the small claims track to pursue copyright infringement

by Darren

Amateur Photographer reported on Wednesday that intellectual property disputes can now be resolved via the Small Claims track of the County Courts.  Previously photographers who had been infringed were obliged to go through the full claims process which was time consuming, costly and laden with risk, especially when up against someone with deep pockets such as a national newspaper.

Time and time again on the Photolegal podcast we heard of examples where a newspaper had infringed and then when the photographer approached for a fee, the picture editor had dictated derisory terms with a ‘take it or leave it’ approach.

Following a trip to Bonaire earlier this year I approached a magazine with a proposal to write a feature about sleeping parrotfish – I’ll blog one or two of the pictures next week but in summary the parrotfish surround themselves with a cocoon (effectively a sleeping bag) of their own mucas at night to protect them from predators.  Not having room for features at that time, the editor asked to see some of the pictures and whatever else I had from Bonaire that might be interesting.  I sent over low resolution unwatermarked images including the one above of Louise inspecting a brand new coral conservation project.  The editor specifically asked for low res, and said she’d revert for high res if the images were to be used.

A discussion ensued, reasons given for why the parrotfish images weren’t suitable and the conversation petered out.  Then I opened an edition of the magazine a couple of months later to find my image had been used as a half page.

It’s always important to remain calm and professional in these situations so I promptly emailed the advertising department of the magazine to check circulation, then generated a price (£183) using FotoQuote software.  I emailed the editor to say I was delighted that she’d managed to find a spot for the image and attached my invoice for the usage.

“But I didn’t realise you wanted to be paid for it.” “I don’t have a budget for that section.”  I resisted the excuses (her budget is irrelevant to me) and pointed out that the approach was clearly a professional one, that the metadata clearly identified the images as All Rights Reserved, and reminded her that in the earlier conversation she’d promised to revert if she wanted to use the image (it’s obvious that the best point to agree terms is once they’ve decided they want the pictures).  The Publisher then got involved and was aggressive from the start.  A quick search of his name and I find out he’s a former national newspaper hack.  Eventually he proffers fifty quid as a ‘final offer’.

I called my Photolegal co-host James Barisic who told me that as the Publisher had offered a sum, the magazine had accepted the copyright infringement element of any subsequent legal action.  This had become a dispute about price and therefore the small claims track was available.  I emailed the publisher with notice of my intention to pursue this through the courts if necessary.  Even up until this point I was prepared to negotiate on the price if he had started being reasonable, but there was no reply.

So I filled out the paperwork on Moneyclaim, the court service website that deals with the administration of small claims.  One of the things I learned when running a small business at 18 was that filling out the court paperwork and sending a copy without filing as ‘notice of intended proceedings’ works well as a final jolt to get someone to pay the bill they owe.  I filled out the details on the website, saved and printed, then sent it with a final notice letter and invoice together with copies of all correspondence (both before and after infringement).  I waited a week, nothing.  I waited a few more days.  On the tenth day I filed the claim.

Once filed the defendant is given five days grace to receive the paperwork then a further two weeks to reply.  If they reply within the two weeks and say they need more time they can get a further two weeks.  If they defend the claim then the judge can look at the paperwork and deal with it directly, or a hearing can take place when both parties present their case.  Legal costs are rarely awarded which de-risks the process when someone owes you a relatively small amount, although you do have to pay a small court fee of £25 which is added to the amount you claim from the defendant (ie: if they lose, they pay the fee, if you lose, you pay the fee).

The magazine didn’t reply.  After the two weeks are up, via the website you can file a request for judgement to be issued.  I’d read advice that being too quick to file for judgement often ended up being overturned if the defendant subsequently replied, so I gave it another couple of weeks.  Still no reply.  I filed for judgement, forgot all about it and got on a plane to Egypt to go diving.

Half way through my week in Egypt Louise emailed to say a cheque had arrived for the full amount plus the court fees.  I have no idea why they waited so long to do the right thing, but they did and that’s why I’ve decided I won’t name the magazine in this piece.  It’s more of a process piece about getting paid for an infringement than a name and shame.

The one hurdle I faced in all of this was that if the publisher hadn’t offered a token payment thus implicitly accepting that they had infringed my copyright, bringing legal proceedings would have cost thousands and involved lawyers.  Most photographers (including me) don’t have that kind of money to throw after retrieving a £180 fee.

Now that restriction has gone and we can persue reasonable fees from those who use our images without permission by filing a simple online form.  What are you waiting for?  Go get ’em!

Don’t look down Nik!

by Darren

Another image from my recent trip to Niagara Falls, I love the power of nature that is evident in this image, not just from the water crashing down but also the moody sky and the inhospitable green foamy water at the bottom of the Horseshoe Falls.

In about half an hour, Nik Wallenda will attempt to cross the iconic Horseshoe Falls on a 5cm thick tightrope. Stunts are banned at Niagara Falls and it has taken two years of negotiations with both sides for him to be allowed to undertake this attempt, with costs of approximately $1.3m.

Should everything go to plan, he’ll step off of Goat Island on the US side of the falls (above the rocks to the left of the above image) and walk the 550m to Table Rock in Canada, 60m above the raging torrent of water. Not only will it be the first tightrope crossing in over 100 years, but if successful he will be the first person to cross the actual falls on a tightrope – previous crossings were of the gorge further downstream.

Having stood at the base of the falls on a boat and felt the spray and mist on my face (and on my lens which became impossible to clean for much of the experience), I can confirm the water is as unwelcoming as it looks.

Please Nik, tread carefully and don’t look down!

UPDATE: It took just 25 minutes from leaving the US for Nik Wallenda to rock up at the Canadian border (with his passport) in the most unconventional way. They asked him “What’s the purpose of your trip to Canada?”, Nik replied “To inspire people around the world.”

He certainly has!

A little bundle of cute

by Darren

Just a cute little chipmunk eating on a rock. What more could you want?

Oh, and I found these waiting outside for me this morning, and that makes me very excited ….

Niagara Falls, with a little extra!

by Darren

I’ve just returned from a fantastic trip to Niagara Falls.  I say returned – I’m actually still in Canada and back at Mont Tremblant (and have actually dashed in to write this post while the rain falls which has scared away the chipmunks I’m watching at play today).

The picture doesn’t need any introduction really.  It’s fireworks.  Above Niagara Falls.  The falls you actually see on the right hand side are the American Falls, while at the far right in fetching purple and orange is the smaller Bridal Falls which anywhere else would still be pretty significant and impressive waterfalls.  The iconic Horseshoe Falls are just a little further along the river towards us out of shot.

To the left of the image is Canada and the town of Niagara Falls, whereas to the right is the United States.  Despite being fairly widely traveled, I’ve still never visited, but this is the closest I’ve ever got and we were tempted had it not been for the likely delay at the border.

I also have a 6,000 image 16 hour timelapse of the falls started at 5pm on the night of our arrival, but assembling that will need to wait until I get home to the UK.  In the meantime, I hope the fireworks brighten up your day!

Hummingbirds!

by Darren

I’m in Canada at the moment – on holiday!

Travel has come to mean effort for the last five or so years.  It’s pretty rare that I go away and have the chance to fully relax – these days I’m either diving or have specifically traveled to photograph this or that.  My Mum and Dad both have significant birthdays this year so we’re here to celebrate and relax with them, while also fulfilling a life-long dream of theirs to visit Niagara Falls.

Anyway, I’ve brought a camera or two.  It would have been a crime not to given that the friends who very kindly lent us their holiday home told us of chipmunks, groundhogs, raccoons and a single sighting of a bear, and all of that without leaving the house!  They’ve also a garden full of the most wonderful birds – we even spotted an as yet unidentified hawk’s nest today, and of course there are these amazing hummingbirds who come to feed on a special feeder containing sugar water.

After a day of rest and a day sightseeing, today seemed to be the day to get some pictures of these highly active birds.  The wings flap so fast that even at 1/2000th of a second the wings are blurred (this particular image is 1/500th).  I’ll get a freeze frame before I go but I spent today pushing the ISO on my camera higher and higher to try and capture those wings without movement.  It will need a very bright day which usually isn’t that great for photography but in this case needs must and I’ll have to make do with the compromise.

What makes this image even more special though is it’s my first.  For the first few tries every time I touched the shutter they flew off.  I then switched off image stabilisation on the lens and they didn’t flee – must have been something to do with the ultrasonic mechanism.  Even after that it takes a bit of practice to focus and capture before they fly off.

I’ve had a look through the rest of today’s images, and I’m not sure I have better.  Sometimes one frame is all you need!